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Thursday, January 28, 2010

Relevance In The Hands Of Men

I'll admit first that it is dangerous to build a cultural analysis on the content of one news article. There could be many nuanced details of the court case I'm about to discuss that aren't mentioned. Reporters frequently ignore the finer, legal points. This is how we end up with the enduring pop-cultural reference of scalding burns from McDonald's coffee as a shorthand for the evils of lawyers generally. Which is lame because there are so many BETTER cases illustrating evil within the practice. Let's turn to a great one now.

He CAN, however, still argue that they women don't deserve the amount of money they seek in damages. Okay, um, guess that's fair. Or "fair" if I may break my own rules against scare-quote use.

Ready for the evil-lawyer bit?

The felon's attorneys fought for the right to subpoena abortion records from the women seeking to recover damages from their assailant. The judge agreed that the records could help the felon "refute the women's claims that they suffered psychological ills after being paid to give him sexually-charged massages at his Palm Beach mansion when they were as young as 14."

The judge, in a generous move, however, said the felon's lawyers couldn't go "fishing" and can only seek medical records after asking the women whether they have ever had an abortion, how many, and where. And that the records wouldn't be made public and may not be admissible during trial.

May not be admissible during trial? Then why are we . . . nevermind, besides the point. Here's the point:

But, he said, since the women claim Epstein, now 57, is responsible for their emotional distress, his attorneys can explore the impacts of other events. Medical records, Hafele said, are a better source of information than a person's memory. . . .

The abortion question has been asked to at least one of more than a dozen women who have sued Epstein in federal and state courts. Most filed lawsuits using pseudonyms.

While quizzing a woman identified as Jane Doe 4, Epstein attorneys offered a glimpse of how they intend to use abortion information. "I want you to tell the ladies and gentlemen of the jury whether or not aborting three fetuses is more traumatic than giving a man a massage in the nude?" attorney Mark Luttier asked.

Reluctantly, the woman admitted that the abortions were worse. The deposition was in a federal case which is not impacted by Hafele's decision.

Wow. Just. Wow.

I'd like to check transcripts to see if the felon's lawyers also asked the Jane Doe whether she wore a red dress during her abortion. You know, just to really wrap it up with a nice bow.

There's a staggering, if deeply troubling, elegance to this strategy. Let's look at it a bit more closely.

The defense's basic argument is this: You can't be offended to the tune of millions (or whatever damages they are seeking) if you've undergone a more severe trauma. A more severe trauma necessarily means THIS trauma must be discounted (in all the ways that word could be used in this sentence).

But they aren't looking for other traumas. Are they asking about parental or sibling deaths? Anyone Jane Doe knows been murdered? In front of her? Has she ever lost a pet? Was she ever in a traumatic car accident? Was she ever raped by anyone (else)? Kidnapped? Undergone a basic medical procedure when the anesthesia didn't work? Chased by a chain-saw-wielding maniac?

No. Jane Doe, have you had an abortion?

Let's parse further, shall we, because, brilliantly, this line of questioning works on So. Many. Levels.

Jane Doe, have you had an abortion? Because abortion, by definition is a traumatic event. How could an abortion NOT be traumatic. Multiple abortions? Most traumatic indeed.

Jane Doe, have you had an abortion? If you answer yes and you were traumatized, then we can discount this lesser trauma, right?

If you answer yes but you were not traumatized, well, then we get to run too, simultaneously fun, subtle attacks:

Jane Doe, have you had an abortion? Yes? And how traumatic was that? Not very?

Jane Doe is a liar and incredible because abortion is traumatic, for all women, at all times, period. Jane Doe's testimony should not be believed and my client owes her nothing.

Jane Doe, have you had an abortion? Yes? And how traumatic was that? Not very?

Jane Does is a cold-hearted, evil bitch of a woman who has no problem killing babies. Quite a turn-off, right, ladies and gentlemen of the jury. And frankly, not only should a cold-hearted person not be deemed credible, but if she can have an abortion and it wasn't the most traumatic thing to happen to her, then, really, was she traumatized THAT MUCH by my client?

It's a thing of beauty, this strategy.

And why any officer of the court would feel comfortable presenting it; why any judge would allow it as a relevant line of questioning; why, as a society, we would allow this to occur . . . I can't answer those whys.

This is absolutely the same as arguments citing victim's wardrobe choices or decision to have a few drinks at a party. This is the same as arguing that because the complaining party or victim presents herself as a promiscuous or sexually-free person, as someone who wears revealing clothing, etc, couldn't possibly have been THAT offended by a comment about that attire, ever, period.

This is where you end up. Ever had an abortion? Then for so many, many layered reasons, whatever sexual assault you suffer, before or after, for the remainder of your life, is a gimme because, well, because you had an abortion. Which is the worst thing to do. And only done by the worst people.

Forget MickeyD's coffee, fellow officers of the court. THIS is why people hate us. And it's a damn good reason.